I love hearing from experienced trial lawyers. Jeffrey H. Kay is such a person. Recently, Jeff wrote me and told me about his views respecting what young lawyers can learn from listening to the jurors and the trial judge after a case has been tried and the jury verdict rendered. Jeff’s long experience comes from the perspective of an Assistant United States Attorney trying big and small criminal cases. That invaluable experience is something that I thought the young trial lawyers who read this blog would be interested in reading. I asked Jeff whether I could reprint his thoughts as a guest post. He agreed.

Here it is:

I recently retired after 42 years of government service, as an AUSA in the SDFL. I served as Chief of Economic Crimes Unit in the Fort Lauderdale Office, we picked up the initial UBS Bank Case (offshore bank account investigation ) and ran with it.

My career path was a bit unusual as I was recruited by the FBI out of law school in 1969 and served in South Carolina and New York City. I was lucky enough in 1977 to be offered a position as an AUSA with the USAO in the EDNY. I was with the USAO in EDNY from 1977 to 1979 and took a transfer to the SDFL, for better weather and more golf!

In my days in the EDNY as a young prosecutor it was very common for our federal judges at the end of the trial to either, ask the young trial lawyers back into chambers to discuss the trial or to have the lawyers meet with jurors, if they wanted to, to discuss the case. It was a learning experience beyond all as I quickly learned there were three trials in the same case.The first being the trial as a prosecutor I thought I was going to try, secondly the case the judge allowed you to try, and the third the case the jury thought they heard. Sometimes these versions did not even come close to one another. And, yes there was another case, the case the Judge he thought he tried!

By listening to the judges and even jurors it was fascinating to learn what issues they picked up on or even missed and what evidence or witness they liked or disliked. Yes, sometimes it could be disheartening to learn that what we thought was the “smoking gun ” in the case was missed or not even considered that important by the jury.

One thing I picked up on early was the dissatisfaction by the jurors that the trial and how it is going to play out in front of them is not explained well enough to them. Even with TV and movies they would ask questions about why this was done or that was done on procedural issues. It seemed the jurors felt we as lawyers and the judges took them for granted in how the trial was going to proceed. From that point on I tried to explain the process or ask the Judge to give a little more information as to how the Court was going to conduct the trial.

My opinion as an old timer is that young lawyers would learn a lot from being able to speak to jurors about the trial with the judge present, obviously with the admonition of not being able to go behind their verdict, but to at least hear from the jurors what they liked or did not like about the trial. Hearing from the judges I thought was also interetsting.as you learned a few tidbits about that judges trial ideas for future use.

Thank you Jeff for your fascinating insights. Please enjoy your retirement. You have earned it, and then some.

This sort of thing should make those lawyers and judges who go through this with open minds and no debating better at lawyering and judging. And for us jurors, too, if we pay attention–we’ll serve on more than one jury, after all.

I found the comments of Jeffrey Kay to be very perceptive and obviously based on years of experience. One reaction – how many young AUSAs now routinely have jury trials? It seems that most of the cases involve change of plea hearings and sentencings – no jury needed.